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With each new technology comes a new way for terrorists to plan new attacks. It also gives governments a new way to thwart them, but unfortunately new ways to violate civil liberties as well.

After the 9/11 attacks, the National Security Agency (News - Alert) monitored phone calls without obtaining a warrant. President George W. Bush signed the order for the warrantless wiretapping in an apparent attempt to stave off any further terrorist attacks.

While warrants are normally required to monitor phone calls made in the United States, these calls were made from U.S. citizens to foreign persons. In the past, the NSA focused exclusively on calls made outside of the United States.

In theory, the Foreign Intelligence Surveillance Court would protect the rights of Americans under the Fourth Amendment to the Constitution forbidding unreasonable searches and seizures.

The warrantless wiretapping was codified under the 2008 Foreign Intelligence Surveillance Act (FISA) Amendments Act. The government must still obtain a warrant to monitor American citizens, but complications arise when Americans contact suspected terrorists overseas.

“The communication goes from being considered incidental to the surveillance, to being relevant foreign intelligence information,” Adam Steele wrote in the Campbell Law Observer.  “As long as a person on either end of the call is located outside of the United States, then the call has the potential to fall under the purview of the law.”

This part of the law is being challenged in the courts. The U.S. Supreme Court heard oral arguments in Clapper v. Amnesty International on October 29.

The law also grants immunity to any telecommunications carrier ordered to perform these wiretaps. The House of Representatives recently renewed the law, and the practice of warrantless wiretaps has continued under President Obama.

The ability of the government to conduct warrantless wiretapping was first challenged in court by the Electronic Frontier Foundation and the ACLU in 2006 before the Northern District of California, after an AT&T (News - Alert) employee blew the whistle on the wiretap program.

The government moved to dismiss the case under FISA, and the 9th Circuit Court of Appeals upheld the lower court rulings.

The Supreme Court denied the writ of certiorari, which would have asked the lower court to review its decision, effectively giving the telecommunications companies immunity for participating in the wiretapping programs.

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